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States limit police cellphone spying, but feds help seal records

As states limit cellphone surveillance, federal law enforcement is intervening to help local and state governments prevent release of public records about a secretive cell-snooping device called a Stingray.

States limit police cellphone spying, but feds help seal records

Most Americans have paid little thought to the fact that their smartphone is a mobile tracking device that broadcasts their location and data about who they’re calling and texting.(Photo: Steve Healey)

Nine states this year placed new legal limits on police cellphone surveillance after revelations that law enforcement agencies across the country are gathering cellphone data of thousands of people at once, often without warrants or without regard to whether they are criminal targets.

At least 10 more legislatures weighed similar legislation after USA TODAY and affiliated newspapers and TV stations reported in December about widespread local and state police use of technology to gather cellphone records in bulk. Some individual police agencies tightened internal oversight, too.

Meanwhile, federal law enforcement agencies continue to intervene to help local and state governments prevent release of public records about the secretive cell-snooping device called a Stingray, which acts as a fake cell tower, forcing all nearby mobile devices to connect to it and transmit location and other identifying data through it.

Invoking anti-terrorism concerns if the public knows more about the technology, the U.S. Department of Justice has testified in cases and offered legal assistance to agencies fighting public records requests about Stingrays in Arizona, California and Florida.

After consulting with federal authorities and the device's manufacturer, some local and state governments released mostly blacked-out purchase records. Many agencies said they limited release of even usually routine spending information because of homeland security concerns, although records obtained across the U.S. show police use Stingrays and related gear mostly for routine crime-fighting.

In Sarasota in recent days, court records show the U.S. Marshals Service seized city police records about use of a Stingray device, which had been sought under the state's open records law. The parties were in court Thursday, as debate continues about whether the records belong to the Sarasota Police or the Marshals Service.

"The concern here is they are intervening to prevent the release of basic accountability information about what government agencies are doing with public money, and whether they're using it to violate people's rights," said Nathan Wessler, an attorney with the Speech, Privacy and Technology Project for the American Civil Liberties Union, who has been requesting Stingray records across the U.S.

The invocation of Homeland Security and anti-terror concerns in local and state public records cases could place a "real chill" on journalists or private watchdog groups trying to get records about the spending of public money, and activities of local and state government, he said.

Despite efforts to stop release of records, USA TODAY-affiliated journalists continue to pry loose documentation about cellphone surveillance from reluctant agencies. In the initial wave of requests, three-dozen agencies first refused to release the records.

Since then, new records obtained in Florida, California and Wisconsin show at least 11 more local police agencies possess Stingray devices than USA TODAY reported in December. That brings to at least 35 the number of agencies proven by public records to have the devices, most of which are shared widely with agencies that don't have them.

In California, The Desert Sun of Palm Springs obtained records proving the San Bernardino County Sheriff's Department bought a Stingray, and News 10 in Sacramento confirmed seven agencies in its region own Stingrays. Two more northern California agencies have grants to buy Stingrays this year.

In Wisconsin, agencies released heavily-redacted records showing the state Department of Justice and Milwaukee Police Department own Stingrays. The state lends the gear to cops in Wisconsin and beyond.

In Florida, a judge disclosed Tallahassee police did not obtain a search warrant to enter a suspect's apartment because they did not want to reveal the existence of the cellphone tracking technology despite an effort by local police — and intervention in court by the FBI — to keep Tallahassee's use of Stingray secret.

Tallahassee police testified they were forbidden to disclose Stingray's use, even in court, by a nondisclosure agreement with the manufacturer, Harris Corp. of Melbourne, Fla. Harris, as it has since December, declined any comment about Stingrays or the public records cases through spokesman Jim Burke.

In oral arguments, Judge Robert Benton said there are 200 cases where police hadn't sought search warrants because of the technology. After the Tallahassee Democrat reported the warrantless Stingray use, Michael DeLeo, chief of police of the Tallahassee Police Department, promised to boost internal oversight of officers' cellphone tracking.

"We want to catch people who are preying on our community, but we also recognize the importance of people's rights," DeLeo said. The policy will "make sure that we don't slip."

"An encouraging first step," said John Sawicki, a Tallahassee attorney specializing in cellphone forensics. "However, their continued, routine practice of sealing court records to conceal virtually every use of the device in which they seek a court order raises a lot of questions."

As in most states, California police agencies bought Stingrays with grant money from the U.S. Department of Homeland Security. Applications justify the purchases as an anti-terror tool, but records obtained from many police departments show the devices are being used to pursue more routine local crime. Oakland police records listing arrests tied to Stingrays indicate none were terrorism-related, News 10 reported. The same is true, Wessler said, in every jurisdiction where he's been allowed to inspect sample cases.

Linda Lye, staff attorney at the ACLU of Northern California, laments the potential for mission creep. "The public and criminal defendants don't have any idea what guidelines govern their use," Lye said.

The San Bernardino Sheriff's Department would not expound on its Stingray use. "It wouldn't be effective if we told everyone how it works and how we use it," said spokeswoman Cindy Bachman.

In Indiana, Wisconsin, Minnesota, Maryland, Virginia, Illinois, Utah, Colorado and Tennessee new laws were passed this year requiring warrants before police could harvest data from cellphones. Maine and Montana had passed similar laws in 2013. And New Jersey's Supreme Court already had ruled cops needed a warrant to get cellphone data.

Still, the laws' details and focus vary by state, and some privacy worries persist.

"We have very powerful technology that has very important consequences for our privacy, but we don't have the kind of transparency necessary to kind of understand what the contours of the issue are," said Byron Lichstein, an attorney arguing a Wisconsin Supreme Court case involving a Stingray. "Even if the targeted information is narrow, the amount and private nature of the information that can be collected is pretty striking."

Minnesota Public Safety Commissioner Ramona Dohman told lawmakers police constantly weigh privacy issues. She said the laws "are very complex and very difficult sometimes to understand."

Minnesota State Rep. John Lesch pushed for clarifying the rules: "Just saying, 'Most of the time, we do X' is not a good enough answer for me."

Contributing:

Contributing: Jennifer Portman of the Tallahassee Democrat, Isabel Mascarenas of WTSP in Tampa, Thom Jensen of KXTV in Sacramento, Blake McCoy of KARE in Minneapolis, Eric Litke of the Gannett Wisconsin Investigative Team and Isabel Mascarenas of WTSP in Tampa.

Local police are increasingly able to scoop up large amounts of cellphone data using new technologies, including cell tower dumps and secret mobile devices known as Stingrays. Here's a closer look at how police do it.